ITEM NO.1A                 COURT NO.1               SECTION XVII

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS

CIVIL APPEAL NO(s). 6197 OF 2000

ALKA BOSE                                            Appellant (s)

                     VERSUS

PARMATMA DEVI & ORS.                                 Respondent(s)

Date: 17/12/2008  This Appeal was called on for judgment today.

For Appellant(s) Mr. Ranjan Mukherjee,Adv.

For Respondent(s) Mr. Shekhar Prit Jha,Adv.

Hon'ble Mr. Justice P. Sathasivam pronounced the judgment of the

Bench comprising Hon'ble Mr. Justice R.V. Raveendran and Hon'ble Mr. Justice

P. Sathasivam.

The appeal is dismissed in terms of the signed judgment.  No

costs.

(R.K.DHAWAN) (VEERA VERMA) COURT MASTER COURT MASTER

(Singed Reportable judgment is placed on the file)

                         REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6197 OF 2000

Aloka Bose      .... Appellant (s)

Versus

Parmatma Devi & Ors.         .... Respondent(s)

JUDGMENT P. Sathasivam, J.

1) Challenge in this appeal is to the order dated 7.9.1999 passed by the

Division Bench of the High Court of Patna, Ranchi Bench allowing L.P.A. No.29

of 1993 (R) filed by Smt. Parmatma Devi – first respondent herein.   

2) The facts of the case, in a nutshell, are as follows:

By virtue of a written agreement of sale on 7.9.1979, one Kanika Bose

(since  deceased)  had  agreed  to  sell  to  the  first  respondent  the  southern

portion of   house being Holding No.  786-C, Ward No.1,  Mohalla Barmasia

under  Giridih  Municipality  for  a  consideration  of  Rs.34,500/-.    The  first

respondent paid a sum of Rs.2001/- as earnest money and part payment and

a further sum of Rs.2000/- on 10.10.1979 to Kanika Bose on a condition that

the  sale  deed  would  be  executed  within  three  months  and  balance

consideration money would be paid at the time of execution of the sale deed.

As  Kanika  Bose  did  not  execute  the  sale  deed,  on  6.12.1979,  the  first

respondent instituted suit being T.S. No. 54 of 1979 for specific performance

in  the  Court  of  Subordinate  Judge,  Giridih,  Bihar.   In  the  said  suit,  the

defendant – Kanika Bose filed her written statement denying the averments

made in the plaint.  By judgment dated 28.09.1983, the subordinate Judge,

Giridih decreed the suit against the defendant.  Challenging the said decree,

the defendant preferred a first appeal before the High Court of Patna, Ranchi

Bench and the same was registered as First Appeal No. 111 of 1983 (R).  By

judgment dated 04.10.1993, learned single Judge allowed the first appeal and

dismissed the suit.  Against the said judgment, the first respondent herein

filed L.P.A. No. 29 of 1993(R).   A Division Bench of the High Court, by the

impugned judgment dated 7.9.1999 allowed the said L.P.A. by setting aside

the  judgment  dated  4.10.1993  passed  by  the  learned  single  Judge  and

restoring the judgment and decree of the trial court.  Aggrieved by the said

judgment,  Kanika Bose-the defendant  has  preferred  this  appeal  by way of

special  leave  before  this  Court.   Pending  appeal,  Kanika  Bose  died  on

27.5.2007.  On an application for bringing the legal heirs on record, three

legal representatives were brought on record i.e., Aloka Bose as appellant and

other two legal heirs as proforma respondent Nos. 2 & 3.     

3) We have heard Mr. Ranjan Mukherjee, learned counsel appearing for the

appellant.   On  the  contentions  urged,  the  following  points  arise  for

consideration in this appeal:

i) Whether an agreement of sale (Ext.2) executed only by the vendor, and

not by the purchaser, is valid?

ii) Whether the plaintiff has satisfied and established her case for decree

for specific performance under Section 16(c) of the Specific Relief Act, 1963.

4) The  main  contention  urged  on  behalf  of  the  defendant  is  that  the

signature found in the agreement was forged and in any event, in the absence

of  signature  of  the  purchaser,  Ext.2  is  neither  a  complete  nor  a  valid

agreement; and consequently the plaintiff is not entitled to enforce the same.

In this respect, it is relevant to point out that the learned trial Judge framed

specific issues, namely, Issue Nos. 5 and 6 and discussed the same in detail.

In the plaint, the plaintiff  has asserted that an agreement of sale was duly

executed by  the  defendant  and she  had put  her  signature  in  token of  its

execution  after  receiving  the  earnest  money.   In  order  to  prove  the

genuineness of the agreement of sale (Ext.2), the plaintiff has asserted that

defendant had executed the said agreement.  She also got the signature of the

defendant in the agreement of sale Ext.2 examined and compared with the

admitted signature of the defendant through handwriting expert P.W.1 Syed

Ekbal Taiyab Hussain Raza who opined that the signature on the agreement of

sale as well as specimen signatures of the defendant are one and the same.

Apart from the expert evidence, plaintiff has also produced P.W.3 – Shankar

Lal,  a  land  broker,  who asserted  on  oath  that  the  defendant  had  put  her

signature in the agreement of sale.  Apart from this, P.W. 4 - Jagdish Prasad,

brother  of  the  plaintiff’s  husband  and  P.W.  9  -  Ishwari  Prasad  Budholia,

husband of the plaintiff also asserted that the defendant Kanika Bose had put

her signature in the agreement of sale in their presence.  As stated earlier, it is

not  the  case  of  the  defendant  that  she  did  not  put  any  signature  in  the

agreement of sale.  On the other hand, she had given an explanation how her

signature  was  obtained  on  a  blank  paper.   Though  defendant  has  also

examined one expert D.W. 2 S.K. Chatterjee, the trial Court has concluded that

the said D.W.2 has not compared all the signatures alleged to have been put

by the defendant in the agreement of sale nor examined those endorsements

which are alleged to be made by the defendant Kanika Bose.  Since the trial

Court analyzed and compared the opinion of two experts with materials placed

before them and preferred to accept the opinion of expert examined by the

side of the plaintiff, there is no reason to dispute the said conclusion.  In the

light of the controversy the Division Bench of the High Court also compared

the  signature  found  in  other  documents  such  as  vakalatnama,  written

statement with that of the signature found in Ext.2 and concluded that the

signature found in the agreement of sale was that of the defendant Ms. Kanika

Bose.  We are of the view that there is no valid reason to disturb the above

factual finding based on acceptable materials.  The learned Single Judge of the

High Court committed an error in taking a contrary view.  

5) The defendant submitted that a contract for sale, like any other contract,

is bilateral in nature under which both vendor and the purchaser have rights

and obligations. It is submitted that an agreement for sale being a contract for

sale, creating a right in the purchaser to obtain a deed of conveyance in terms

of the agreement under which, the vendor agrees to convey to the purchaser,

and the purchaser agrees to purchase, the subject-matter of the agreement

for an agreed consideration, subject to the terms and conditions stipulated in

the said agreement, it is bilateral. It is therefore contended that an agreement

of sale is neither complete nor enforceable unless it is signed by both parties.  

6) Certain  amount  of  confusion  is  created  on account  of  two divergent

views expressed by two High Courts. In  S. M. Gopal Chetty vs. Raman  [AIR 1998

Madras 169], a learned Single Judge held that where the agreement of sale was

not signed by the purchaser, but only by the vendor, it cannot be said that

there was a contract between the vendor and the purchaser; and as there was

no contract, the question of specific performance of an agreement signed only

by the vendor did not arise.  On the other hand, in Md. Mohar Ali vs. Md. Mamud

Ali [AIR 1998 Gauhati 92], a learned Single Judge held that an agreement of sale

was  an  unilateral  contract  (under  which  the  vendor  agreed  to  sell  the

immovable property to the purchaser in accordance with the terms contained

in the said agreement), that such an agreement for sale did not require the

signatures of both parties, and that therefore an agreement for sale signed

only by the vendor was enforceable by the purchaser.  

7) We find that neither of the two decisions have addressed the real issue

and cannot be said to be laying down the correct law. The observation in Md.

Mohar Ali (supra) stating that an agreement of sale is an unilateral contract is

not correct. An unilateral contract refers to a gratuitous promise where only

party  makes  a  promise  without  a  return  promise.  Unilateral  contract  is

explained thus by John D. Calamari & Joseph M. Perillo in The Law of Contracts

(4th Edition Para 2-10(a) at pages 64-65):   

“If A says to B, ‘If you walk across the Brooklyn Bridge I will pay you $ 100,’  A has made a promise but has not asked B  for a return promise. A has asked B to perform, not a commitment to perform. A has thus made an offer looking to a unilateral  contract.  B cannot accept this offer by promising to walk the bridge. B must accept, if at  all,  by  performing  the  act.  Because  no  return  promise  is requested, at no point is B bound to perform. If B does perform, a contract  involving  two  parties  is  created,  but  the  contract  is classified  as  unilateral  because  only  one  party  is  ever  under  an obligation.”    

All agreements of sale are bilateral contracts as promises are made by both –

the vendor agreeing to sell and the purchaser agreeing to purchase.  On the

other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is

signed both by the vendor and purchaser, it is not a valid contract is also not

sound. An agreement of sale comes into existence when the vendor agrees to

sell  and the purchaser agrees to purchase,  for an agreed consideration on

agreed terms. It can be oral. It can be by exchange of communications which

may or may not be signed. It may be by a single document signed by both

parties. It can also be by a document in two parts, each party signing one copy

and  then  exchanging  the  signed  copy  as  a  consequence  of  which  the

purchaser has the copy signed by the vendor and a vendor has a copy signed

by the purchaser.  Or it  can be by the vendor executing the document and

delivering it to the purchaser who accepts it. Section 10 of the Act provides all

agreements are contracts if they are made by the free consent by the parties

competent to contract, for a lawful consideration and with a lawful object, and

are not expressly declared to be void under the provisions of the Contract Act.

The proviso to section 10 of the Act makes it clear that the section will not

apply to contracts which are required to be made in writing or in the presence

of witnesses or any law relating to registration of documents. Our attention

has not been drawn to any law applicable in Bihar at the relevant time, which

requires an agreement of sale to be made in writing or in the presence of

witnesses or to be registered. Therefore,  even an oral  agreement to sell  is

valid.  If so, a written agreement signed by one of the parties, if it evidences

such an oral agreement will also be valid. In any agreement of sale, the terms

are always negotiated and thereafter reduced in the form of an agreement of

sale and signed by both parties or the vendor alone (unless it is by a series of

offers  and  counter-offers  by  letters  or  other  modes  of  recognized

communication). In India, an agreement of sale signed by the vendor alone

and delivered to the purchaser, and accepted by the purchaser, has always

been considered to be a valid contract. In the event of breach by the vendor, it

can be specifically enforced by the purchaser. There is, however, no practice of

purchaser alone signing an agreement of sale.   

8) The defendant next contended that the agreement of sale in this case

(Ex.2)  was clearly in a form which required signatures  of  both vendor and

purchaser. It is pointed out that the agreement begins as :  “Agreement for

sale between Kanika Bose and Parmatma Devi” and not an “Agreement of sale

executed  by Kanika Bose  in favour of Parmatma Devi”. Our attention is also

drawn to the testimonium clause (the provision at the end of the instrument

stating when and by whom it was signed) of the agreement, which reads thus :

“In witnesses whereof,  the parties hereto have hereunto set  and subscribed their respective

hands and seals  on these presents.” It  is therefore contended that the agreement

specifically  contemplated  execution  by  both  parties;  and  as  it  was  not  so

executed, it was incomplete and unenforceable. We have carefully examined

the agreement (Ex.2),  a  photocopy of  which is  produced.  The testimonium

portion in the agreement is in an archaic form which has lost its meaning.

Parties no longer ‘subscribe their respective hands and seals’. It is true that

the format obviously contemplates signature by both parties. But it  is clear

that the intention of the parties was that it should be complete on signature by

only the vendor. This is evident from the fact that the document is signed by

the vendor and duly witnessed by four witnesses and was delivered to the

purchaser.  Apart  from  a  separate  endorsement  made  on  the  date  of  the

agreement  itself  (7.9.1979)  by  the  vendor  acknowledging  the  receipt  of

Rs.2001 as advance, it also contains a second endorsement (which is also duly

witnessed) made on 10.10.1979 by the vendor, acknowledging the receipt of a

further sum of Rs.2000 and confirming that the total earnest money received

was Rs.4001. This shows that the purchaser accepted and acted in terms of

the  agreement  which  was  signed,  witnessed  and  delivered  to  her  as  a

complete instrument and that she then obtained an endorsement thereon by

the vendor, in regard to second payment. If the agreement was not complete,

the  vendor  would  not  have  received  a  further  amount  and  endorsed  an

acknowledgement thereon on 10.10.1979. Apart from the above, the evidence

of the witnesses also shows that there was a concluded contract. Therefore,

even though the draftsman who prepared the agreement might have used a

format intended for execution by both vendor and purchaser, the manner in

which the parties had proceeded, clearly demonstrated that it was intended to

be executed only by the vendor alone. Thus we hold that the agreement of

sale  (Ext.  2)  signed  only  by  the  vendor  was  valid  and  enforceable  by  the

purchaser.  

9) The trial Court as well as the Division Bench of the High Court on the

analysis  of  the  materials  in  the  form  of  oral  and  documentary  evidence

concluded  that  the  vendee  had performed her  part  by  paying  the  earnest

money and sent a notice conveying her willingness and readiness to pay the

balance  of  sale  consideration.   The  said  notice  was  acknowledged  by  the

defendant.  The clauses in the agreement clearly show that the vendor had to

perform and fulfill  the terms of  agreement by executing the sale  deed on

receipt of the consideration.  We have already adverted to the fact that the

vendee had performed her part of the contract.   

10) The trial Court and the Division Bench also concluded that the plaintiff

had fulfilled the conditions as stated in Section 16(c) of the Specific Relief Act

and in that event the plaintiff is entitled decree for specific performance which

was  rightly  granted  by  the  trial  Court.   Though  learned  counsel  for  the

appellants  pointed  out  that  the  claim  of  the  plaintiff  that  she  was  put  in

possession of  a  portion  of  the  suit  property  in  part  performance  was  not

accepted by the trial Court, in the light of the categorical findings about the

validity of Ext. 2 and satisfactory proof of other conditions for granting the

decree for specific performance, we are unable to accept the said contention.

On the other hand, we agree with the conclusion arrived at by the Division

Bench and hold that the agreement of sale was enforceable and the trial Court

has rightly granted decree which was affirmed by the Division Bench of the

High Court.   

11) Looked at from any angle, the judgment of the Division Bench of the

High  Court  setting  aside  the  order  of  the  Single  Judge  and  affirming  the

judgment and decree of the trial Court, does not warrant any interference by

this Court.  Consequently,  the appeal fails and the same is dismissed.  No

costs.                         

    …………………………………J.                                    (R.V. Raveendran)

     …………………………………J. New Delhi;   (P. Sathasivam)                                  December 17, 2008.